HomeMy WebLinkAboutBy-law 6705/06
THE CORPORATION OF THE CITY OF PICKERING
BY-LAW NO. 6705/06
Being a By-law to amend Restricted Area (Zoning) By-law 2520,
as amended, to implement the Official Plan of the City of
Pickering, Region of Durham in Part of Block Y, Plan M16, in
the City of Pickering. (A 06/06)
WHEREAS the Council of The Corporation of The City of Pickering deems. it
desirable'to permit a mixed use development of townhouse dwelling units and
apartment buildings that contain commercial uses on the subject lands, being
Block Y, Plan M16, in The City of Pickering;
AND WHEREAS an amendment to By-law 2520, as amended, is therefore
deemed necessary;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF
PICKERING ENACTS AS FOLLOWS:
1. SCHEDULES I and II
Schedules I and " attached hereto with notations and references shown
thereon are hereby declared to be part of this By-law.
2. AREA RESTRICTED
The provisions of this By-law shall only apply to those lands in Part of
Block Y, Plan M16, Pickering, designated "RH/MU-2", "SA-LW", "SA-8" ,
"MD-H6", and "OS-HL" on Schedule I attached hereto.
3. DEFINITIONS
In this By-law,
(1) "Adult Entertainment Parlour" shall mean a building or part of a
building in which is provided, in pursuance of a trade, calling,
business or occupation, services appealing to or designed to
appeal to erotic or sexual appetites or inclinations;
(2) "Bakery" shall mean a building or part of a building in which food
products are baked, prepared and offered for retail sale, or in which
food products baked and prepared elsewhere are offered for retail
sale;
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11 )
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"Body Rub Parlour" includes any premises or part thereof where a
body rub is performed, offered or solicited in pursuance of a trade,
calling, business or occupation, but does not include any premises
or part thereof where the body rubs performed are for the purpose
of medical or therapeutic treatment and are performed or offered by
persons otherwise duly qualified, licensed or registered so to do
under the laws of the Province of Ontario;
"Build-to-zone" shall mean an area of land in which all or part of a
building elevation of one or more buildings is to be located;
"Business Office" shall mean a building or part of. a building in
which the management or direction of a business, a public or
private agency, a brokerage or a labour or fraternal organization is
carried on and which may include a telegraph office, a data
processing establishment, a newspaper publishing office, the
premises of a real estate or insurance agent, or a radio or television
broadcasting station and related studios or theatres, but shall not
include a retail store;
"Commercial Club" shall mean an athletic or recreational club
operated for gain or profit and having public or private membership,
but shall not include an adult entertainment parlour;
"Convenience Store" shall mean a retail store in which food, drugs,
periodicals or similar items of day-to-day household necessities are
kept for retail sale primarily to residents of, or persons employed in,
the immediate neighbourhood;
"Day Nursery" shall mean lands and premises duly licensed
pursuant to the provisions of The Day Nurseries Act, or any
successor thereto, and for the use as a facility for the daytime care
of children;
"Dry Cleaninq Depot" shall mean a building or part of a building
used for the purpose of receiving articles, goods, or fabrics to be
subjected to dry cleaning and related processes elsewhere, and of
distributing articles, goods or fabrics which have been subjected to
any such processes;
"Dwellinq" shall mean a building or part of a building containing one
or more dwelling units, but does not include a mobile home or
trailer;
"Dwelling Unit" shall mean one or more habitable rooms occupied
or capable of being occupied as a single, independent, and
separate housekeeping unit containing a separate kitchen and
sanitary facilities;
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21 )
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"DweIHnq, Sinqle Attached or Sinqle Attached Dwellinq" shall mean
one of a group of not less than three adjacent dwellings attached
together horizontally by an above grade common wall;
"Financial Institution" shall mean a building or part of a building in
which money is deposited, kept, lent or exchanged;
"Floor Area - Residential" shall mean the area of the floor surface
contained within the outside walls of a storey or part of a storey;
"Food Store" shall mean a building or part of a building in which
food, produce, and other items or merchandise of day-to-day
household necessity are stored, offered or kept for retail sale to the
pu blic;
"Gross Floor Area - Residential" shall mean. the aggregate of the
floor areas of all storeys of a building or structure, or part thereof as
the case may be, other than a private garage, an attic, or a cellar;
"Gross Leasable Floor Area" shall mean the aggregate of the floor
areas of all storeys above or below established grade, designed for
owner or tenant occupancy or exclusive use only, but excluding
storage areas below established grade;
"Laundromat" shall mean a self-serve clothes washing establishment
containing washing, drying, ironing, finishing or other incidental
equipment;
"Lot" shall mean an area of land fronting on a street which is used
or intended to be used as the site of a building, or group of
buildings, as the case may be, together with any accessory
buildings or structures, or a public park or open space area,
regardless of whether or not such lot constitutes the whole of a lot
or block on a registered plan of subdivision;
"Multiple Dwellinq-Horizontal" shall mean a building containing
three or more dwelling units attached horizontally, not vertically, by
an above-grade wall or walls;
"Multiple Dwellinq-Vertical" shall mean a building containing three
or more dwelling units attached horizontally and vertically by an
above-grade wall or walls, or an above-grade floor or floors, or
both;
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(22) "Personal Service Shop" shall mean an establishment in which a
personal service is performed and which may include a barber
shop, a beauty salon, a shoe repair shop, a tailor or dressmaking
shop or a photographic studio, but shall not include a body-rub
parlour as defined in the Municipal Act, R.s. O. 19aO, Chapter 302,
as amended from time-to-time, or any successor thereto;
(23) "Private Garaqe" shall mean an enclosed or partially enclosed
structure forthe storage of one or more vehicles, in which structure
no business or service is conducted for profit or otherwise;
(24) "Professional Office" shall mean a building or part of a building in
which medical, legal or other professional service is performed or
consultation given, and which may include a clinic, the offices of an
architect, a chartered accountant, an engineer, a lawyer or a
physician, but shall not include a bOdy-rub parlour as defined in the
Municipal Act, R.S.O. 19ao, Chapter 302, as amended from
time-to-time, or any successor thereto;
(25) "Restaurant - Type A" shall mean a building or part of a building
where food is prepared and offered or kept for retail sale to the
public for immediate consumption on the premises or off the
premises, or both, but shall not include an adult entertainment
parlour as defined herein;
(26) "Retail Store" shall mean a building or part of a building in which
goods; wares, merchandise, substances, articles or things are
stored, kept and offered for retail sale to the public;
(27) "Storey" shall mean that portion of a building other than a
basement, cellar or attic, included between the surface of any floor
and the surface of the floor, roof deck or ridge next above it;
(28) "Yard" shall mean an area of .Iand which is appurtenant to and
located on the same lot as a building or structure and is open,
uncovered, and unoccupied above ground except for such
accessory buildings, structures, or other uses as are specifically
permitted thereon.
4. PROVISIONS ("RH/MU-2" Zone)
(1) Uses Permitted ("RH/MU-2" Zone)
No person shall within the lands designated "RH/MU-2" on
Schedule I attached hereto, use any lot or erect, alter, or use any
building or structure for any purpose except the following:
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(a) bakery;
(b) business office;
(c) convenience store;
(d) commercial club;
(e) day nursery;
(f) dry cleaning depot;
(g) financial institution;
(h) food store;
(i) laundromat;
0) multiple dwelling-horizontal;
(k) multiple dwelling-vertical;
(I) personal service shop;
(m) professional office;
(n) restaurant - type A;
(0) retail store;
(2) Zone Requirements ("RH/MU-2" Zone)
No person shall within the lands designated "RH/MU-2" on
Schedule I attached hereto, use any lot or erect, alter, or use any
building except in accordance with the following provisions:
(a) BUILDING HEIGHT:
(i) For Multiple Dwelling Vertical uses:
Minimum
Maximum
5 Storeys and 15 metres
18 Storeys and 60 metres
(ii) For Multiple Dwelling Horizontal uses:
Maximum
12 metres
(b) BUILDING LOCATION AND SETBACKS:
(i) Buildings and structures shall be located entirely within
the building envelope shown on Schedule II attached
hereto;
(ii) No multiple dwelling-horizontal shall be permitted within
60 metres from the lot line that abuts Bayly Street;
(iii) No building, part of a building, or structure shall be
erected within the "RH/MU-2" Zone, unless a minimum of
50% of the length of the build-to-zone, contains a building
or part of a building;
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(iv) Despite Section 4(2)(a)(i) above, a two storey, 6.5 metre,
building height may be permitted at the north-west corner
of the property, adjacent to the intersection of St. Martins
Drive and Bayly Street, as a component of the minimum
five storey building;
(v) No multiple dwelling horizontal uses shall be erected,
unless a minimum of 50% of the length of the
build-to-zone, as illustrated on Schedule II attached
hereto, contains a building or part of a building;
(vi) For multiple dwelling-vertical buildings located within the
"RH/MU-2" Zone, and within the build-to-zone, any
portion of a building or structure in excess of two storeys
in height, shall be set back a minimum of 3.0 metres from
the main wall of the building or structure;
(vii) Notwithstanding Clause A above, below grade parking
structures shall be permitted beyond the limits of the
building envelope identified on Schedule I attached hereto,
but no closer than 0.5 metres from the limits of the lands;
(viii) The horizontal distance between multiple dwelling-
horizontal buildings shall be a minimum of 1.8 metres;
(c) . PARKING REQUIREMENTS:
(i) There shall be provided and maintained a minimum of
4.5 parking spaces per 100 square metres of gross
leasable floor area for all permitted uses listed in
Section 4(1) of this By-law, except for multiple
dwelling-vertical, multiple dwelling-horizontal uses.
Non-resident parking shall be provided at grade, in a
below grade structure, or both;
(ii) For multiple dwelling-vertical uses, there shall be
provided and maintained a minimum of 1.1 parking space
per dwelling unit for residents, and 0.15 of a parking
space per dwelling unit for visitors. Parking spaces for
residents shall be provided in a below grade structure;
(Hi) For multiple dwelling-horizontal, there shall be provided
and maintained a minimum of 2.0 parking spaces per
dwelling unit for residents, and 0.2 of a parking space per
dwelling unit for visitors. Parking spaces shall be
provided at grade, in a below grade structure, or both.
Parking spaces may also be provided in a private garage
attached to the rear of the dwelling unit it serves;
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(iv) All entrances and exits to parking areas and all parking
areas shall be surfaced with brick, asphalt or concrete, or
any combination thereof;
(v) At grade parking lots shall be permitted no closer than
3.0 metres from the limits of the "RH/MU-2" Zone
identified on Schedule I attached hereto, or any road;
(d) SPECIAL REGULATIONS:
(i) Non-residential use.s shall only be permitted within a
building containing dwelling units. The non-residential
uses shall be limited to the first two storeys of a building;
(ii) The minimum aggregate gross leasable floor area for all
non-residential uses shall be 2,000 square metres which
can be built in two phases with the first phase having a
minimum of 1,300 gross leasable floor area non-residential
uses;
(Hi) The maximum aggregate gross leasable floor area for all
restaurant type "A" uses shall be 500 square metres;
(iv) No drive-thru facilities are permitted on the lands
designated "RH/MU-2" as illustrated on Schedule I of this
By-law;
(v) Despite Section 4(2)(b)(i) of this By-law, outdoor patios
associated with a restaurant type "A" are permitted to
encroach beyond the building envelope as illustrated on
Schedule II of this By~law;
(vi) Despite Section 4(2){b){i) of this By-law, covered
walkways with supporting structures, are permitted to
encroach beyond the building envelope as illustrated on
Schedule II of this By-law;
(vii) Despite Section 4(2)(d)(H) outdoor patios associated with
a restaurant type "A" will not be included within the
aggregate gross leasable floor area requirements of
subclause (H) above;
5. PROVISIONS ("MD-H6" Zone)
(1) Uses Permitted ("MD-H6" Zone)
No person shall within the lands designated "MD-H6" on Schedule I
attached hereto, use any lot or erect, alter, or use any building or
structure for any purpose except the following:
(a) Multiple dwelling horizontal;
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(2) Zone Requirements ("MD-H6" Zone)
(a) Lot Area (minimum): 70 square metres
(b) Lot Frontage (minimum): 6.0 metres
(c) Front Yard Depth (minimum): 3.0 metres
(d) Side Yard Width (minimum): 1.2 metres except that no
interior side yard shall be
provided on the side where
dwellings on adjacent lots are
attached together;
(e) Building Height (maximum): 12.0 metres
(f) Gross floor area (minimum): 1 00 square metres per
dwelling unit
(g) Building Separation:
Despite Section 5(2Xd) a
minimum 1.8 metre separation
between blocks of multiple
dwelling horizontal shall be
permitted;
(h) Parking Requirements:
(i) For each dwelling unit there shall be provided and
maintained a minimum of 2 parking spaces, one of
which may not be located within a driveway,. and one of
which must be provided within an attached garage of
the dwelling, any vehicular entrance of which shall be
located not less than 6.0 metres from any street or drive
aisle providing access to those lots, plus a minimum of
0.2 visitor parking spaces per unit.
6. PROVISIONS ("SA-8" Zone)
(1 ) Uses Permitted ("SA-B" Zone)
No person shall within the lands designated "SA-B" on Schedule I
attached hereto, use any lot or erect, alter, or use any building or
structure for any purpose except the following:
(a) Single attached dwelling;
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(2) Zone Requirements (USA-8" Zone)
(a) Lot Area (minimum):
(b) Lot Frontage (minimum):
(c) Front Yard Depth (minimum):
(d) Rear Yard Depth (minimum):
1 00 square metres
4.8 metres
3.0 metres
5.0 metres
(e) Side Yard Width (minimum):
(i) 1.2 metres except that no
interior side yard shall be
provided on the side where
dwellings on adjacent lots are
attached together;
(ii) Despite Section 6 (2)( e) (i) a
minimum interior side yard of
0.6 metres is required adjacent
to an Open Space Zone;
12.0 metres
(f) Building Height (maximum):
(g) Gross floor area (minimum):
100 square metres per
dwelling unit
(h) Obstruction Of Yards:
(i) Despite Section 5.8(b) of By-law 2520, covered and
unenclosed porches, verandahs and f1ankage entrance
features not exceeding 1.5 metres in height above the
established grade may project no more than:
A 2.0 metres into any required front or rear yard;
B 0.6 metres into any required side yard;
(i) Parking Requirements:
(i) for each dwelling unit there shall be provided and
maintained a minimum of 2 parking spaces, one of which
may not be located within a driveway, and one of which
must be provided within an. attached garage of the
dwelling, any vehicular entrance of which shall be located
not less than 6.0 metres from any street or drive aisle
providing access to those lots, plus a minimum of 0.2
visitor parking spaces per unit;
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U) Special Regulations:
(i) No more than 8 units shall be attached horizontally;
(ii) Despite Section 6(2)(e) a minimum 1.8 metre separation
between blocks of single attached dwellings shall be
permitted.
7. PROVISIONS ("SA-LW" Zone)
(1) Uses Permitted ("SA-LW" Zone)
No person shall within the lands designated "SA-LW " on Schedule I
attached hereto, use any lot or erect, alter, or use any building or
structure for any purpose except the following:
Residential Uses:
(a) single attached dwelling;
Commercial Uses:
(a) business office;
(b) commercial school;
(c) personal service shop;
(d) professional office;
(e) retail store;
(2) Zone Requirements ("SA-LW" Zone)
(a) Lot Area (minimum):
(b) Lot Frontage (minimum):
(c) Unit Width (minimum):
(d) Front Yard Depth (minimum):
125 square metres
4.9 metres
4.9 metres
3:0 metres
(i) Despite clause (d) above, front yard balconies, verandahs
and decks, both uncovered and covered, may project.
fully into any required front or side yard;
(e) Side Yard Width (minimum):
(f) Building Height (maximum):
0.6 metres except that no
interior side yard shall be
provided on the side where
dwellings on adjacent lots
are attached together;
12.0 metres
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(g) Gross floor area (minimum):
100 square metres per
dwelling unit
(h) Parking Requirements:
(i) For each dwelling unit there shall be provided and
maintained a minimum of 2 parking spaces, one of which
may not be located within a rear yard, and one of which
must be provided within an attached garage located to
the rear of the dwelling, any vehicular entrance of which
shall be located not less than 6.0 metres from any street
or drive aisle providing access to those lots, plus a
minimum of 0.2 visitor parking spaces per unit;
(ii) Clauses 5.21.1 a) to 5.21.2 f), inclusive of By-law 2520,
as amended, shall not apply to the lands designated
"SA-LW" on Schedule I attached hereto;
(i) Special Regulations:
(i) Despite Section 7 (1) of this By-law, non-residential uses
permitted within the "SA-LW" zone designation may be
established only within the ground floor of a dwelling unit;
(ii) No driveway access from St. Martins Drive for individual
dwelling units shall be permitted;
(iii) Despite Section 2.46 of By-law 2520, St. Martins Drive
shall be considered as the front lot line;
(iv) Despite Section 7(2)(f) a minimum 1.B metre separation
between blocks of single attached dwellings shall be
permitted.
B. GENERAL PROVISIONS ("RH/MU-2", "SA-LW", "SA-B", "MD-H6" Zones)
(1) For residential uses, the lands designated "RH/MU-2", "SA-LW",
"SA-B", "MD-H6"" on Schedule I attached hereto, shall be
developed at a density of over 30 units per net hectare and up to
and including 140 units per net hectare up to a maximum of
473 dwelling units;
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(2) Despite any other provIsion of this By-law, a maximum of
B5 percent of the single attached dwellings and/or multiple
dwellings horizontal, as shown on a City approved site plan may be
permitted until such time as a minimum of 2000 square metres of
gross leasable floor area for uses permitted by Section 4 (1) of this
By-law, on lands zoned "RH/MU-2" has been constructed;
(3) Despite Section 5.6 of By-law 2520 and Clause 3(1B) of this
By-law, the requirement for frontage on a public street shall be
satisfied by establishing frontage on a common elements
condominium street;
(4) All visitor parking 'spaces that are required for multiple dwelling-
horizontal for each zone may be provided within any of the lands
designated "RH/MU-2", "SA-LW", "SA-B", and "MO-H6";
(5) That the internal zone lines separating the residential zone
categories shall be deemed to be the center line of the internal
private road;
(6) Clauses 5.21.2(a), 5.21.2(b), 5.21.2(e), 5.21.2(f), 5.21.2(g), and
5.21.2(k) of By-law 2520, as amended, shall not apply to lands
designated "RH/MU-2", "SA-LW " , "SA-B" , "MO-H6" on Schedule I
attached hereto.
9. PROVISIONS ("OS-HL" Zone)
(1) Uses Permitted ("OS-HL" Zone)
No person shall within the lands designated "OS-HL" on Schedule I
attached hereto use any lot or erect, alter or use any building or
structure for any purpose except the following:
(a) preservation and conservation of the natural environment, soil
and wildlife;
(b) resource management;
(c) pedestrian trails and walkways;
(2) Zone Requirements ("OS-HL" Zone)
(a) No buildings or structures shall be permitted to be erected, nor
shall the placing or removal of fill be permitted, except where
buildings or structures are used only for purposes of flood and
erosion control, resource management, or pedestrian trail and
walkway purposes;
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(b) Despite Clause (a) above, tot lots, visitor parking spaces and
associated traffic aisles are permitted within the "OS-HL" Zone
as illustrated on Schedule I attached hereto.
10. PROVISIONS ("(H)" Zone)
(1) Uses Permitted Zone Requirements ("(H)" Zone)
Until such time as the "(H)" Holding Provision is lifted, the lands
shall not be used for any purpose other than any use permitted by
the General Commercial Zone "C2" of Zoning By-law 2520, subject
to the provisions of Section 11 of By-law 2520.
(2) Removal of the "(H)" Holding Symbol
The "(H)" Holding Symbol shall not be removed from any zone until
such time as a Performance Agreement has been executed and
registered to the satisfaction of the City of Pickering that provides
for:
(a) Performance Agreement shall include the requirements of the
City of Pickering, including but not limited to, maintenance of
retail floor space during the development of the project,
intersection improvements at Bayly Street and St Martins
Drive, entering into a site plan agreement, environmental and
engineering requirements including storm water management,
(b) satisfying the Region of Durham for the provision of sanitary,
water and transportation services and environmental and
engineering requirements; and,
(c) satisfying the Toronto Region Conservation Authority for the
provision of environmental, engineering and land conveyance
requirements.
11. BY-LAW 2520
By-law 2520, as amended, is hereby further amended only to the extent
necessary to give effect to the provisions of this By-law as it applies to the
area set out in Schedule I attached hereto. Definitions and subject
matters not specifically dealt with in this By-law shall be governed by
relevant provisions of By-law 2520, as amended.
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12. EFFECTIVE DATE
This By-law shall come into force in accordance with the provisions of the
Planning Act.
BY-LAW read a first, second, and third time and finally passed this 3rd day of
October 2006.
l
Debl A. Bentley, City Clerk
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SCHEDULE I TO BY-LAW 6705/06
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SCHEDULE D TO BY-LAW 6705/06
PASSED THIS 3 rd
DAYOF October
ISSUE DATE:
April 30, 2007 �-
DECISION/ORDER NO:
1198 PL061130
Ontario
Ontario Municipal Board
Commission des affaires municipales de ('Ontario
IN THE MATTER OF subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Pickering East Shore Community Association (PESCA)
Appellant: SR & R Bay Ridges Ltd.
Subject: By-law No. 6705/06
Municipality: City of Pickering
OMB Case No.: PL061130
OMB File No.: R060325
} IN THE MATTER OF subsection 34(25) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Motion by: SR & R Bay Ridges Ltd. (applicant/appellant)
Purpose of Motion: Request for an Order Dismissing the Appeal
Appellant: Pickering East Shore Community Association (PESCA)
Subject: By-law No. 6705/06
Municipality: City of Pickering
OMB Case No.: PL061130
OMB File No.: R060325
APPEARANCES :
Parties Counsel*/Agent
SR & R Bay Ridges Ltd.(SR& R) William Friedman*
Pickering East Shore Community Susan Carlevaris & T Dobson
Association (PESCA)
City of Pickering Andrew C Allison*
DECISION DELIVERED BY J. P. ATCHESON AND ORDER OF THE
BOARD
Pickering East Shore Community Association (PESCA) and (SR&R) have
appealed Zoning By-law Amendment 6705-06 of the City of Pickering. The effect of the
by-law is to permit a mixed use development on a 3.38 hectare parcel of land located at
the southeast quadrant of Bayly Street and St. Martins Drive in the City of Pickering.
The proposed development sanctioned by the By-law would permit 36 traditional
townhouses, 69 back to back townhouses, 15 live work townhouses, 353 apartment
- 2 - PL061130
units in two buildings as well as about 25,000 square feet of retail/commercial uses in
the ground floor of the apartment buildings.
Counsel for SR&R Bay Ridges Ltd. at the commencement of the hearing advised
the Board that his clients was withdrawing their appeals to the by-law and would ask
that the Board close its file with respect to their appeals.
Counsel for SR&R Bay Ridges Ltd. the owner of the property has brought a
motion pursuant to subsection 34(25) of the Planning Act to dismiss the appeal filed by
Pickering East Shore Community Association PESCA without a hearing.
The applicant in their motion material invite the Board to dismiss the appeal •
without a hearing on the grounds that the appeal letter dated November 06, 2006 and
found at exhibit 4 does not disclose any apparent land use planning grounds upon
which, after a full hearing, the Board could allow the appeal in whole or in part.
Their motion is endorsed and supported in this regard by the City of Pickering.
The applicant further alleges in theirr motion material that the actions of the
appellant are not made in good faith, are frivolous and vexatious, and only for the
purpose of delay. They have also given notice that they will seek their costs in bringing
this motion. The City of Pickering indicated that they would not be seeking costs
associated with this motion and are relying on Section 34(25)(a)(i). It should be noted
that the Board has held in a number of decisions that the tests set out in subsection
34(25) are disjunctive in that only one of the grounds need to be sustained in order for
a motion to dismiss to succeed.
Section 34(25) of the Planning Act as constituted at the time that this appeal was
filed outlines the Board's authority when considering motions to dismiss an appeal from
a zoning by-law without a hearing. .
The Board may dismiss an appeal if, in its opinion, any one of the following
conditions has occurred:
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I .
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Section 34(25) of the Planning Act, R.S.O. 1990 c. P.13
Dismissal without hearing
(25) Despite the Statutory Powers Procedure Act and subsections (11) and
(24), the Municipal Board may dismiss all or part of an appeal without holding a hearing,
on its own motion or on the motion of any party, if,
(a) it is of the opinion that,
(i) the reasons set out in the notice of appeal do not disclose any
apparent land use planning ground upon which the Board could allow
all or part of the appeal,
(ii) the appeal is not made in good faith or is frivolous or vexatious, or
(iii) the appeal is made only for the purpose of delay;
(a.1) the appellant did not make oral submissions at a public meeting or did not
make written submissions to the council before the by-law was passed and,
in the opinion of the Board, the appellant does not provide a reasonable
explanation for having failed to make a submission;
(b) the appellant has not provided written reasons for the appeal;
(c) the appellant has not paid the fee prescribed under the Ontario Municipal
Board Act; or
(d) the appellant has not responded to a request by the Municipal Board for
further information within the time specified by the Board. 1994, c. 23,
s. 21 (11); 1996, c. 4, s. 20 (11, 12).
The respondent PESCA at the hearing presented its response to the motion
f
Exhibit 3.
The Board took a short adjournment to permit SR&R Bay Ridges Ltd. and the
City to consider the material filed.
The Board with the consent of the parties will abridge the normal notice time
requirements with respect to PESCA's reply motion. No written motion material was
filed by the City of Pickering.
The facts with respect to this case are that SR&R Bay Ridges acquired the
property in August of 2005. At that time the subject property was zoned General
Commercial "C2" and contained a neighborhood shopping plaza of some 56,205 square
feet. The affidavit evidence of the planner for the applicant is that the plaza was
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struggling and that for the most part is now vacant with the lost of the prime tenant a
grocery store and that in light of the current market conditions significant vacancies will
continue in the future.
The property is designated Mixed Use Area-Mixed use Corridors area in the City
of Pickering Official Plan. This designation in the Official Plan permits a
residential density range of between 30 and 140 units per hectare which translates into
a maximum of 473 dwelling units on a net designated area of 3.38 hectares as well as
commercial uses. The northern limit of the property abuts Bayly Street an Arterial
corridor immediately south of the 401 highway. St Martins Drive abuts the property on
the west. An open space area which is partially regulated by the Toronto and Region
Conservation Authority abuts the property to the east. The immediate neighborhood is
comprised of a mix of single detached, semi-detached dwellings, townhouses and an
apartment building. An existing townhouse complex and an 18 storey apartment
building abut the subject property and are shown on exhibit 2 Tab2B. The Pickering GO
Station is located some 500 metres to the east of the subject property.
In February 2006 the applicant filed a rezoning application with the municipality
to redevelop the site with townhouses and two apartment buildings. The application was
subject to a public hearing in June of 2006 and subsequent to the public hearing and
after discussions with city staff the applicant revised the application. In August of 2006 a
revised application comprising some 120 townhouse units two high rise apartments of
18 and 16 stories containing at total of 353 units and about 25,000 square feet of retail
commercial uses in the ground floors of the apartment was submitted to the
municipality. The application has been the subject to a public urban design Charrette
and was accompanied by a series of technical reports in support of the revised
application.
The following technical studies were submitted in support of the revised
application:
1. Planning report prepared by Commercial Focus Advisory Services,
including analysis of the provincial policy/plan framework, analysis of
Durham Region arterial corridor guidelines, analysis of Transit
supportive land use planning guidelines of the Province of Ontario,
analysis of transit oriented development experiences;
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2. Phase one and phase two Environmental Site Assessment prepared by
Jacques Whitford Engineering
3. Traffic Impact study prepared by Javar Consultants Inc.;
4. Summary of the Bay Ridges Plaza redevelopment urban design
workshop findings prepared by MBPD Inc.;
5. Shadow Study prepared by Kirkor Architects
6. Landscape plans, prepared by James McWilliams;
7. Scoped Enviromential Impact Statement, prepared by Watershed
Management Ecology.
I '
These studies have been reviewed by the appropriate public agencies, and the
City. The project has been modified as a result of comments received. The
modifications are reflected in the Zoning By-law appealed to the Board.
In October Council for the City of Pickering approved the rezoning by-law
Amendment #6705-06 subject to holding provisions as set out paragraph 10 of the By-
law. These provisions require that a performance agreement, site plan and urban
design issues be completed prior to the lifting of the holding provision. These matters
are not in dispute.
The substance of PESCA's appeal is contained in a letter dated November 06,
2006 and may be summarized as follows that:
1. The approved development is inconsistent with important principles of the
Pickering Official Plan, the Regional Official Plan and the Places to Grow
Act.
.2. The proposed development is not compatible with our stable residential
neighbourhood while retaining essential commercial services.
3. Concerns relating to residential densities, building heights, loss off retail
space, parking ratios, protection of the environment, permanent loss of
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employment, traffic and the detrimental effect of the proposal on the
existing community.
PESCA is an incorporated ratepayer group with a membership of over 8,000
residents and 650 businesses and serves the area bounded by the 401 Highway to the
north, Lake Ontario to the south, Squires Beach Road to the east and Frenchman's Bay
to the west. The group at this hearing was represented by appointed members of the
association and not legal counsel. They have been involved in all of the public meetings
and hearings associated with the proposed development of the subject property and
among other things are very concerned about the lost of the neighbourhood plaza and
in particular the grocery store component of the existing development. They also —-
expressed some concerns with the proposed intensity of new development on the site
and in particular the height and location of the apartment buildings. They freely admit
that they are "not opposed to the redevelopment of the site into a mixed use
development provided that the eventual development meets the retail service
requirements of our community and is compatible with our mature and stable
neighbourhood." They provided no meaningful precision to these concerns during the
course of this hearing.
PESCA in support of its contention that the proposal does not conform with the
policy directions of Pickering Official Plan, the Regional Official Plan and the Places to
Grow Act make references in its motion response material to the principals of the
Pickering Official Plan and in particular section 2.6, chapters 2.3, 2.5, 2.11, 2.7, 2.8, 2.9,
11, 11.1, 11.2 and sections 9.3.5 and 16.3.27 of the Regional Official Plan and section
2.1 and 6 of the Provincial Growth Plan. The Board would note that Official Plans and
other policy documents should be viewed in their entirety and not on a selective basis
when one considers the issue of conformity. There is no evidence that the public
hearing process set out in the official plan for public consultation and the development
of urban design guidelines for this part of the neighbourhood have not been followed.
Nor is there any concrete policy direction that would require the plaza and in particular
the grocery store use to be maintained. No Official Plan amendment is required to
sanction the proposed development. The question with respect to the amount of
commercial space to be maintained is one of degree. It is equally clear that residential
intensification of this site in proximity to GO transit meets the objectives of the Provincial
Growth Plan.
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The substance of the issues associated with compatibility with the
neighbourhood as set out in PESCA's appeal deals with the loss of the grocery store
and the height and proximity of the apartment buildings to the surrounding lower density
area. The evidence is that the grocery store is gone as a result of market conditions and
while it is true that neglect should not confer a benefit on the owners to the detriment of
the neighbourhood PESCA has not provided any evidence nor have they indicated that
any market evidence would be forth coming to support of the continuation of the plaza
as it once existed. There is no evidence before this panel of the Board that the mixed
used development proposed with its 25,000 square feet of retail commercial is not an
appropriate solution to the changing market conditions nor is there any evidence that
the change is not consistent with the commercial hierarchy established in the Pickering
Official Plan or that this form of mixed used development is not appropriate for this
location.
PESCA has expressed concern with the current density of the proposal yet they
freely admit that the density sanctioned by the by-law before the Board conform to the
maximum range established by the Pickering Official Plan. They have also expressed
concerns with the proposed height of the apartment towers and their location in
proximity to low density development. They do not argue with the shadow studies done
but put forward the concern that there may be some oversight impacts on adjacent
properties. They did not indicate what evidence they might call with respect to this
issue. They freely admit that there is an 18 storey apartment to the south of the
---- proposed property which has existed for a number of years.
PESCA alleges in its motion material that the parking standards established for
the various uses on the site are not appropriate. They suggest that parking problems
exist currently in the area and rely on a Transportation for Tomorrow study which found
that in this area an average parking standard of 1.9 spaces per dwelling unit is required.
It is normal for parking standards to vary according to residential dwelling units types.
The standards used by Pickering in this By-law fall within the generally accepted ranges
for the various form of residential development. Similarity parking standards for various
types of commercial use fall within a range depending upon the form and type of
commercial uses. The ranges proposed in the by-law fall within the normally accepted
ranges and are supported by both the Region's and the City's technical reviews.
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PESCA alleges in its motion material that proper regard has not been given to
the environmentally sensitive area on the east side of the property and that the
development is not supported by the Toronto and Region Conservation Authority.
However the most compelling evidence found at exhibit 9 is a letter from the Toronto
and Region Conservation Authority dated September 6, 2006 in which the authority
indicated that it has reviewed all of the environmental reports and
" has no objection to the approval of the zoning amendment subject to the valley
corridor (including 10 metres from the illustrated top of bank) being zoned in an open
space category that would have the effect of prohibiting development, including rear
yards, roads, and accessory structures, etc. We request that the valley corridor be
renaturalized and transferred into public ownership as part of this or any future
planning application".
The uncontradicted affidavit evidence is that this will occur.
PESCA alleges in its motion material that outdated traffic data was used in
support of the application. The traffic model and base data was provided by the City and
the Region to the applicant's consultant in order for them to do their traffic impact
analysis. It begs credulity to believe that the professional engineering staff of the Region
and the City would not properly review traffic information for a proposed development of
this nature and take into consideration the impact of this change of use on the
transportation system in the area. The most compelling evidence is the report from the
Region dated August 24, 2006 and found at exhibit 11 in which they made specific
recommendation regarding road widenings right hand and left turn lanes and the ---�
permitted form of access to the site from Bayly Street. PESCA offered no evidence that
the traffic evidence is wrong only that in their view the base data is outdated.
PESCA alleges in its motion material a detrimental effect of the proposal on the
existing community. On questioning from the Board it would appear that the most
significant impact they see is the loss of the only grocery store on the south side of the
401. However this is a current reality which is the result of market conditions. In fact the
application was amended to include some 25,000 square feet of retail commercial as a
result of public input. Similarly the applicant has agreed to make a dedication to a public
body of the valley lands as a result of the comments from Toronto and Region
Conservation Authority. They also expressed concern that the municipality took cash in
lieu instead of land for parks purposes. This is however a discretion granted to
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Municipal Councils. The affidavit evidence supports the contention that the rezoning
application has undergone a rigorous review, is supported by qualified studies,
conforms with the approved planning policies in place and represents good planning for
this part of the City of Pickering.
The Board has reviewed the Zoning By-law Amendment found at exhibit 2, tab
4c, the Official Plan of the City of Pickering, exhibit #5, and the affidavit evidence of the
Planners for the applicant and the City as well as the positions put forward by PESCA in
its appeal and its motion material. The Board is satisfied that the matters with respect to
conformity with the Pickering Official Plan, the Regional Official Plan and the Places to
Grow Act have been appropriately addressed and that the PESCA appeal does not
v- raise any issues worthy of the Board's adjudicative process in this regard.
The Board, after carefully considering the material filed and the submission
made, finds that the appellant has consistently expressed concerns regarding the
proposed development and has been actively in the public process. It is clear that their
concerns have been heard and in part acted upon by the Municipality. The actions of
PESCA do not, in the Board's finding, constitute bad faith or rise to the level of frivolous
or vexatious, or made for the purpose of delay contemplated by the Act and alleged by
SR&R Bay Ridges Ltd. in their motion material.
It is equally clear that there is an onus placed upon an appellant to clearly
indicate the planning grounds upon which his appeal is based and that it is not sufficient
to merely hide behind planning jargon in a belief that prior to or during the course of a
full hearing that some substantial appeal issues may appear. The substance of the
appeal must be clearly and meaningfully articulated at the time of its filing.
The Board, in determining whether an appeal contains apparent land use
planning grounds, has consistently, in its decisions, considered the following three
factors:
1. The authenticity of the reasons stated in the appeal;
2. Whether the issues raised in the appeal will affect the hearing before the
Board; and
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3. Whether the issues raised in the appeal are worthy of the Board's
adjudicative process.
The Board is reluctant to take away any individual's or ratepayer groups right to
appeal and to have a full, fair and complete hearing of their concerns. The Board
recognizes that PESCA is not represented by Counsel, and has given them latitude to
explain their concerns in an attempt to determine the authenticity of the planning
concerns they have set out in their appeal.
At no time did PESCA proffer any potential witness that they intended to call if
the matter were to go to a full hearing nor could they articulate any changes other than
the retention of the grocery store and some modification to the apartment buildings
height. They proffered no indication of any substantive evidence that they intended to
call in support of grounds set out in their appeal letter and motion material.
It is not good enough to expound land use planning issues in the hope that some
might stick. There must be some prima facia contemporary evidence in support of the
appeal to warrant a full hearing.
The Board in considering the grounds outlined by PESCA's appeal letter and its
submission at this hearing, is mindful of the significant body of case law that has
developed in recent years in relation to Section 34(25) of the Planning Act. It is no
longer sufficient for appellants to raise triable issues couched in planning language to
survive a motion brought under this subsection. The appeal must disclose planning
grounds that warrant a hearing. It is not sufficient to simply raise apprehensions as
members McLoughlin and Lee state, in City of Toronto v. East Beach Community
Association:
The Board is entitled to examine the reasons stated to see whether they
constitute genuine, legitimate and authentic planning reasons. This is not to
say that the Board should take away the rights of appeal whimsically, readily
and without serious consideration of the circumstances of each case.
The Board during the course of PESCA's presentation, sought amplification from
them to determine what evidence they might lead at a hearing which could establish
legitimate and authentic planning grounds which might lead the Board to allow their
appeal in whole or in part. The Board recognizes and has made allowance that PESCA
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is not a supported by learned counsel or planning professionals and as such may not be
as conversant with planning matters and as such has given latitude to their presentation
which was thoughtful, well written and presented with great skill. However, that being
said, the Board can find nothing in PESCA's written appeal, their motion material or
their oral arguments made before this panel that would lead the Board to believe that
any genuine or authentic planning reasons would be provided during the course of a full
hearing that would lead the Board to allow their appeal in whole or in part.
The Board after considering all of the evidence filed, the arguments presented,
and the case law cited, concludes that the appeal filed by PESCA against the decision
of the City of Pickering to pass Zoning By-law Amendment 6705-06 does not, pursuant
`- to Section 34(25)(a)(i) of the Planning Act, disclose any apparent land use planning
grounds upon which the Board could allow all or part of the appeal.
The Board then heard submissions from counsel for SR & R Bay Ridges Ltd.
seeking cost in the amount of $53,759.92. The Boards authorities to grant costs are
broad and can result when a party believes that another party has acted clearly
unreasonably. The circumstances in which the Board may order costs are set out in its
Rules of Practice and Procedure, and are as follows;
106. Circumstances in which Costs Order May be Made Clearly unreasonable,
frivolous, vexatious or bad faith conduct can include, but is not limited, to:
- a. Failing to attend a hearing event or to sending a representative when properly given
notice, without contacting the Board;
b. Failing to give notice or adequate explanation or lack of co-operation during
prehearing proceedings, changing a position without notice, or introducing an issue or
evidence not previously mentioned;
c. Failing to act in a timely manner or to comply with a procedural order or direction of
the Board where the result was undue prejudice or delay;
d. Conduct necessitating unnecessary adjournments or delays or failing to prepare
adequately for hearing events;
e. Failing to present evidence, continuing to deal with issues, asking questions or taking
steps that the Board has determined to be improper;
f. Failing to make reasonable efforts to combine submissions with parties of similar
interest;
g. Acting disrespectfully or maligning the character of another party; and
h. Knowingly presenting false or misleading evidence.
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The Board, as noted earlier in this decision, has no evidence that PESCA has
acted unreasonably. They have actively participated in the pubic''hearing process and
were able, to a degree, to modify the proposal in keeping with their views as to what
would be appropriate for their neighbourhood. They were prepared for the motion
hearing and responded in a reasonable fashion. The Board finds that none of the
circumstances a set out in Rule 106 apply in this case.
The Board directs that the appeal file of SR&R Bay Ridges Ltd. to By-law 6705-
06 of the City of Pickering be closed on the advice of counsel for SR & R Bay Ridges
Ltd. that they are withdrawing their appeal.
Accordingly and for the reasons outlined in this decision.
" UPON MOTION to this Board brought by SR & R Bay Ridges Ltd. for an order
dismissing the appeals under subsection 34(25) of the Planning Act and after hearing
the motion; - .
THE BOARD ORDERS that the motion is granted and the appeals by Pickering
East Shore Community Association are dismissed.
THE BOARD ORDERS that the motion for costs brought by SR & R Bay Ridges
Ltd. is not granted.
The BOARD so ORDERS.
•
. "J. P. Atcheson"
J. P. ATCHESON
MEMBER ,